HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Glaus Napash Applicant
-and-
URS Canadian Operations Ltd. Respondent
INTERIM DECISION
Adjudicator: Ena Chadha Date: June 4, 2010 Citation: 2010 HRTO 1281 Indexed as: Napash v. URS Canadian Operations
1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), on December 11, 2009 alleging discrimination and reprisal in employment on the basis of disability. The applicant alleges that the respondent discriminatorily sought to subject him to drug and alcohol testing after he accidentally damaged company property. The applicant alleges that he was dismissed because he refused to undergo the alcohol and drug testing, which he believed violates his human rights.
2The respondent filed a Response on April 9, 2010, denying that it discriminated against the applicant. The respondent alleges that the applicant's employment was terminated because he refused to comply with company's alcohol and drug policy. In its Response, the respondent requests early dismissal of the Application on the basis that other proceedings through the Employment Insurance Commission and the Board of Referees have appropriately dealt with the substance of the Application. The respondent indicates that a Board of Referees, appointed pursuant to the Employment Insurance Act, S.C. 1996, c. 23 ("EIA"), rendered a decision finding that the applicant's employment was terminated due to his own misconduct.
3The applicant filed a Reply on May 18, 2010 requesting that the Tribunal dismiss the respondent's request for early dismissal on the basis that the Board of Referees decision does not appropriately dealt with the substance of the Application.
BACKGROUND
4Based on the submissions and documentary materials filed by the parties, it appears that the applicant made a claim for Employment Insurance benefits and his claim was rejected. The applicant appealed his claim for benefits to the Board of Referees and a hearing was held in this matter. The applicant was represented at the hearing. The Board of Referees rendered a decision upholding the Employment Insurance Commission's decision to deny the applicant benefits.
5The Board of Referees determined that the applicant was disqualified from receiving benefits under the EIA because his employment was terminated by reason of his own misconduct. The Board of Referees found that the respondent employer's request that the applicant undergo an alcohol and drug test was reasonable and that the applicant's refusal to submit to the alcohol and drug testing constitutes misconduct. In their summary of the evidence and reasons for decision, the Board of Referees noted:
[T]he claimant even stated that he is not against drug testing but that he believes that it is illegal and violates his human rights. We as a Board cannot make a ruling of misconduct based on his belief that his human rights were violated. Our role is to determine if the claimant lost his job due to his own misconduct and due to his own actions which caused his lost (sic) of employment.
6It appears that the applicant has filed an appeal of the Board of Referees decision to the Office of the Umpire.
SECTION 45.1 REQUEST TO DISMISS
7Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
8The Tribunal's jurisprudence has suggested that s. 45.1 should be considered in two parts: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the application. The purpose of s. 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.
9I am satisfied that a hearing conducted by the Board of Referees is a proceeding for the purposes of section 45.1 of the Code. However, I am not satisfied that the human rights substance of the Application was "appropriately" dealt with.
10The applicant alleges that the respondent infringed his Code-protected rights on the basis of disability or perceived disability. Further, the applicant challenges the validity of the respondent's alcohol and drug policy. Based on the information provided by the parties, it appears that the Board of Referees simply determined whether or not the applicant was entitled to employment benefits and expressly did not consider the human rights and disability issues as alleged by the applicant.
11In the circumstances, I am not satisfied that the applicant's allegations of disability discrimination have been dealt with appropriately by the other proceeding. The respondent's request for early dismissal of the Application is dismissed.
DEFERRAL SUBMISSIONS
12The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
13Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are: the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
14At present there is not enough information regarding the current status of the applicant's appeal to the Office of the Umpire to allow the Tribunal to determine whether the Application should be deferred. As such, the Tribunal considers that it would be appropriate for the parties to be given an opportunity to make submissions on whether the Tribunal should defer the Application until the Umpire appeal process has been completed.
15The applicant is directed to provide information regarding the current status of the Umpire appeal. The applicant shall provide this information to the Tribunal and the respondents within two weeks of the date of this Interim Decision. By the same date, the applicant may also provide any further submissions on the question of whether the Application should be deferred. Within two weeks of its receipt of any information and/or submissions from the applicant, the respondents may make any further submissions about whether the Application should be deferred.
16I am not seized.
Dated at Toronto, this 4th day of June, 2010.
"Signed By"
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Ena Chadha Vice-chair